Employers and employees alike understand that Title VII prohibits discrimination and harassment based on things like sex, race, and national origin. Likewise, employers by and large recognize that they cannot retaliate against employees who “oppose” unlawful discrimination or harassment. If an employee, for example, files a complaint alleging she has been discriminated against or harassed, the employer cannot retaliate against her for submitting the complaint and opposing the discrimination or harassment.
What if, however, the employee never gets to the point of actually submitting a complaint? What if, instead, the employee just says no to her sexually harassing supervisor? Is that enough to trigger protection under Title VII’s opposition clause?
Addressing this issue, the Sixth Circuit recently determined that an employee who made verbal demands to her supervisor to stop offensive conduct, but who never filed an actual complaint, was protected from retaliation under Title VII. That is, it may be enough for an employee to just say no or otherwise voice verbal opposition to the alleged harasser to stop the harassment.
The federal appellate court broadly read Title VII such that “a complaint to a harassing supervisor constitutes protected activity” and “a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII.” Although this ruling diverges from a 2004 determination by the Fifth Circuit, the federal appeals court reviewing federal cases filed in Texas, employers in Texas should nonetheless take note of the decision and prepare accordingly.
In addition to anti-harassment and discrimination policies, employers should have policies in place relating to making complaints and non-retaliation. And in all events, employers should be careful; retaliation claims may arise unexpectedly based on little more than an employee telling her supervisor to stop.
EEOC v. New Breed Logistics, No. 13-6250 (6th Cir., April 22, 2015)